Computer Software Legal Protection
Computer Software Protection in Ukraine
Before describing Ukrainian law in the field of software protection, it shall be outlined that there is a computer software definition made by WIPO, which says that ‘computer program’ is “a set of instructions capable, when incorporated in a machine-readable medium, of causing a machine having information-processing capabilities to indicate, perform or achieve a particular result”.
Ukrainian legislation, defines computer software as a “set of instructions in the form of words, digits, codes, schemes, symbols or in any other form, expressed in a computer-readable form, that enable it to achieve a certain goal or result (this notion covers both an operating system and an application expressed in output or object codes).” Computer software is protected as an authorial work within copyright. It should be outlined that, however, Ukrainian legislation still has to be developed, the law clearly states that not only operation process of a software has to be protected, but a source code as well. There is a certain distinction between source code and object code:
- Object code is a binary, machine-readable version of the software. Object code allows the licensee to operate the software but does not enable the licensee to make enhancements or modifications to the software or create derivate works.
- The source code is the human-readable statement in a computer language that, when processed by a compiler, assembler, or interpreter, become executable by a computer. Source code allows a licensee to maintain the software, to make modifications and enhancements to the software.
Another statement we would like to outline is concerning Idea and Expression distinction.
There are no guidelines which would tell us how to difference idea and expression when dealing with computer software. We have analyzed Article 10 of the Law of Ukraine “On Copyright and Related Rights” which is about ‘Objects which are not protected’. Nevertheless, there is nothing about Idea itself. The only objects which are not protected:
- reports of the daily news or current events with the nature of the usual press information;
- works of folk art (folklore);
- official documents of the political, legislative, administrative character and their official translations issued by state authorities within their authority;
- state symbols of Ukraine, state awards;
- symbols and signs of state authorities, the Armed Forces of Ukraine and others military formations;
- the symbolism of territorial communities, symbols; and
- signs of enterprises, institutions, and organizations;
- and etc.
The last point to outline is the protection of graphic user interface (‘look and feel’) and the ‘sequence, structure and organization’ of a program. The law of Ukraine “On Copyright and Related Rights” is broad when determined ‘computer software’. There are no guidelines which would state the difference between operation software system and the result of such activity – ‘look and feel’ part. It is important to outline the meaning of the ‘look and feel’ part as, for instance, there might be a case in Ukraine similar to Navitaire v EasyJet (which is described below) and the Court will face the issues when executed its decision. In terms of the protection of computer program structure and sequence, there are no guidelines either. It is stated that computer program is protected as an authorial work, but there is nothing about its parts.
Although Ukraine protects both object and source code according to the guidelines, in the Union such dilemma is a tough one. There was a sequence of Australian cases back 1980s concerning the object code copyright protection. The most famous is Computer Edge Pty. Ltd. V Apple Computer Inc, where it was concluded that programs written in object code are not literary works because they consist of electronic impulses which cannot be read by any human being. Nevertheless, the decision has only historical interest because Copyright Act was amended to cover object code copyright protection.
As we have analyzed there are no legal guidelines concerning idea and expression issue as well as the protection of ‘look and feel’ part. However, the EU case law has experienced troubles and made statements when dealing with such cases. As in the EU legal precedent is a source of law, it is applicable for the future cases for the Court.
The idea cannot be protected under copyright as Article 9(2) TRIPS Agreement clearly states that ‘Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’. Nevertheless, there are a lot of disputes concerning the distinction between an idea and expression. In order to receive a protection for the authorial work, it has to pass a two-stage test for identifying an authorial work, which is the following:
STAGE 1: is the subject matter of protectable type?
- Yes, for any selection and arrangement (compilation) of words, sounds, pixels of color, etc.;
- No, for: individual words, sounds, pixels of color, etc., and sporting events;
- Unclear for: perfumes, performance artists, costumes, and props.
STAGE 2: Is the subject matter protected?
- Probably yes for: short literary extracts; point-and-click photos. (Probably as it depends on the specific work in question);
- No for: work created by animals (e.g. photos taken by a monkey).
Article 9(2) which states that ‘Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’. The reason why copyright protects an expression rather than an idea might be that if an idea was protected, the freedom and expression right might be violated. The Article 11 (1) of the EU Charter of Fundamental Rights states that ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’
Nevertheless, there could be a case when an idea is protected. For example, the use of design concepts taken from the common stock of architectural ideas that everyone is entitled to one will not infringe the artistic copyright in an architect’s plans. However, design concepts and underlying structures and developed ideas may proceed to provide they are not too remote from the work as expressed. For example, the non-literal expression has been recognized as being within the scope of copyright protection in Rees v Melville and Corelli v Gray concerning the plot of a play taken from a novel.
“A computer program shall be protected if it is original work in the sense that it is the author’s own intellectual creation…” and such a protection “…shall be applied to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright directive.” That is said, that a “…idea and principles which underlie any element…” cannot be protected by copyright. This unprotectable area was extended with a SAS Institute Inc. v World Programming Inc. The case is interesting for the software development industry because SAS Institute claimed that World Programming Inc. used the same functionality as they did, however, World Programming Inc. had no access to the claimant’s source code. The Court extended the meaning of Article 1(2) to a functionality of program languages. Having issued another decision, the Court might have created a monopoly around certain software development area.
Another case which is in the software field is Oracle, Inc v. Google, Inc, where the issue is if a code of API packages and its structure, sequence and organization are subject to copyright protection. Based on these cases and his understanding of Java APIs implemented in Android, the judge concluded that the Java APIs were unprotectable methods.
The Directive was unquestionably intended to protect the expression of a computer program or software, rather than its idea or principles. It recognizes that ‘to the extent that logic, algorithms, and programming languages comprise ideas and principles’, these aspects of programs are unprotected by copyright law.
Another topic to discuss is a graphic user interface (‘look and feel’) and protection of the structure and sequence of a program. There are two ways how copyrights can be infringed: literal copying and non-literal copying.
Literal copying means that the person steals the whole code, line-by-line. An example can be Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd case, where the defendant copied not one but a suite of programs. Moreover, there will be an infringement of law if a person copies not the whole code, but even a part of it. For example, if it is copied an algorithm which is the core of some program, according to Infopaq case.
Non-literal copying is a bit more complicated than literal copying. When we talk about Non-literal copying, we mean a coping not the actual code (either source or object) of the program, but rather its function, structure or ‘look and feel’. For instance, the screen displays or menus. In Navitaire v EasyJet case, where the claimant designed an online booking system (‘OpenRes’) together with the defendant. The parties fell out, and the defendant developed its own online booking system (‘eRes’), which was designed to have the same ‘look and feel’ as OpenRes. The defendant didn’t have access to the claimant`s code so it was written from scratch. There was no literal copying. Instead, the claimant alleged three areas of ‘non-textual’ copying of its software: 1) ‘look and feel’; 2) user command structure; 3) certain display screens. The claimant succeeded only with the third claim. It was stated that there was no infringement of ‘look and feel’ and user command structure issues because two completely different programs can produce a similar result. Furthermore, the defendant didn’t have access to the claimant`s work, what means the software was written in a different way.
Herein was analyzed the relevance of computer programming protection and its definition. One of the main points is that there is a difference between object code and source code. According to the Ukrainian legislation, both object and source code are protected, which has a positive influence on a business in the field of web development. However, there are still terms which have to be legally established in Ukraine: idea and expression distinction, protection of user experience interface, the protection of code sequence.
We can claim that the idea cannot be protected according to the EU legislation, because it would create a monopoly over the certain economic industry, thus the only expression is protectable, according to the conclusion of Inc v. Google, Inc case. In terms of the code sequence and user experience interface protection, with the decision in Navitaire v EasyJet case, we can state that two different sequences of code can produce a similar operational result. Thus, copyright shall not protect sequence itself, as well as the ‘look and feel’ part.